Ontario E-Discovery Rules of Civil Procedure Now in Effect

With the arrival of 2010, the new Rules of Civil Procedure came into effect in Ontario, as announced on the website of the Ministry of the Attorney General. Rules were substantially reformed in an effort to achieve Honourable Coulter A. Osborne’s goal to “make the civil justice system more accessible and affordable.” The reforms include changes to Summary Judgment, Mediation, Third Party Claim, Discovery, and dozens of other rules. Of particular interest to Slaw readers, the changes related to discovery represent a positive step towards control over the time and expense associated with civil proceedings in this new era of e-discovery.

Here are some highlights as gleaned from the Ministry’s website and gathered from the recently published on-line version of the Rules of Civil Procedure:

1. RULE 20.05, SUMMARY JUDGMENT, WHERE TRIAL IS NECESSARY provides “That examinations for discovery be conducted in accordance with a discovery plan established by the court…”

Note the new reference to a “discovery plan”, among many other changes in this section.

2. RULE 29.1, DISCOVERY PLAN is a new section added to the Rules. “Where a party to an action intends to obtain evidence…” under Rules 30 through 33, or 35 (Discovery of Documents, Examination for Discovery, Inspection of Property, Medical Examination or Examination for Discovery by Written Questions, respectively) “the parties to the action shall agree to a discovery plan.”

It establishes that a discovery plan be agreed to the earlier of at least sixty-days after the close of pleadings or before attempting to obtain evidence.

It requires that the plan be written and that the plan include:

• the intended scope of documentary discovery
• dates for the service of each party’s affidavit of documents
• information respecting the timing, costs and manner of the production of documents
• the names of persons intended to be produced for oral examination for discovery, and;
• any other information intended to result in the expeditious and cost-effective completion of the discovery process.

A sub-section entitled “Principles re Electronic Discovery” provides that “In preparing the discovery plan, the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’”.

Perhaps that language can be understand better by reading recommendation 32(a) in Justice Osborne’s initial report, “Civil Justice Reform Project”, in which he writes “Consider and, to the extent reasonable, apply the E-Discovery Guidelines and The Sedona Canada Principles, in particular, the requirement to meet and confer regarding the identification, preservation, collection, review and production of electronically stored information.”

As outlined on the Ministry’s website:

These principles include:

• Discovery steps should be proportionate. Parties should consider the nature of litigation; relevance of electronic evidence; importance to adjudication; and the cost and delay that may be imposed to deal with electronic documents. [Sedona Canada Principle 2]
• Parties should meet and confer as soon as possible regarding identification, preservation, collection and production of electronic documents. [Sedona Canada Principle 4]
• Parties should be prepared to disclose all relevant electronic documents. [Sedona Canada Principles 3 and 5]
• Parties should agree as early as possible on the format in which electronic information will be produced. [Sedona Canada Principle 8]

Also according to the Ministry:

In determining the degree of detail required in a discovery plan or discovery agreement, the principle of proportionality should be considered. In some cases, such as those involving a limited number of documents or a small dollar value, it may not be appropriate to enter into a detailed discovery agreement. One option would be for counsel, following a meet and confer session, to send a letter confirming the discovery plan.

For further information, please follow these links related to Sedona:
The Sedona Canada Principles
PracticePRO E-Discovery Practice Aids
Ontario Bar Association Model e-Discovery Precedents.

This new rule also includes the requirement that the parties update the plan (subrule 29.1.04) and provides that the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan (subrule 29.1.05).

3. RULE 29.2, PROPORTIONALITY IN DISCOVERY is another new section added to the Rules. “This Rule applies to any determination by the court…” under Rules 30, 31, 34, or 35 (Discovery of Documents, Examination for Discovery, Procedure on Oral Examinations, or Examination for Discovery by Written Questions, respectively)… “as to whether a party or other person must answer a question or produce a document”.

In making that determination, the court shall consider whether:

• the time required would be reasonable
• the expense would be justified
• the party would be caused undue prejudice
• it would unduly interfere with the orderly progress of the action
• the information is readily available from another source, and;
• the order would result in a requirement to produce an excessive volume of documents.

Again, according to the Ministry:

The court will continue to consider relevance and privilege and will also be able to consider the principles of proportionality when determining whether to require that a question be answered or a document produced.

4. RULE 30.02, SCOPE OF DOCUMENT DISCOVERY is amended by striking out “relating to any matter in issue” and substituting “relevant to any matter in issue” (see also Rules 31 and 76).
According to the Ministry’s website, “This reform provides a clear signal to the bar that restraint should be exercised in the discovery process. It strengthens the objective that discovery be conducted with due regard to cost and efficiency. The effects of this reform will be felt by those who abuse the discovery process or engage in areas of inquiry that could not reasonably be considered necessary.”

5. RULE 31, EXAMINATION FOR DISCOVERY: Two significant changes were made to this rule.

RULE 31.03 provides that a party may be examined more than once only by leave of the court. The new rules hold that the court may provide such leave once it concludes that “satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience” and that “examination of more than one person would likely expedite the conduct of the action”. This new rule applies to the sections on behalf of Corporations, and of Partnerships and Sole Proprietorships. For more information, see the flowchart: Discovery.

RULE 31.05 is amended by adding a default time limit of seven hours, and reads that “No party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with the consent of the parties or with leave of the court.”

Further amendments and additions to this section enumerate what the court shall consider in determining whether leave should be granted:

• amount of money in issue
• complexity of issues
• amount of time reasonably required in the action
• financial position of each party
• the conduct of any party
• a party’s denial or refusal to admit anything that should have been admitted, and;
• the interest of justice

When recommending this reform, Justice Osborne wrote that this “one-day limit should be a default time” and that the rule “ought to permit parties to agree to more than one-day discoveries”. He also expressed his view that “this approach responds to the concerns about unduly long and costly discoveries”.

Timeline and Resources

Related links:
Superior Court of Justice
Ontario Court of Appeal
Rules of Civil Procedure

Big thanks to Christophe Patrouch for his help on this post.

Cross-posted from Ledjit’s blog.